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that, because the "taxable estate" does not include marital
deduction property, decedent intended to exclude Mr. Miller's
residual interest from the general obligation of the residuary to
pay estate tax. Thus, petitioner concludes that the trust must
pay the estate tax out of residuary property not qualifying for
the marital deduction.
Contrary to petitioner's assertion, however, nothing in the
trust instrument constitutes a direction by decedent to pay
estate tax exclusively from the nonmarital property. Rather, the
instrument provides that the trustee "may within his discretion
pay any portion of the Estate" tax. (Emphasis added.)
Petitioner's interpretation would ignore the reference to
discretion in the provision and cannot be accepted. This
discretionary provision is not sufficient to transfer the tax
burden to nonmarital property for purposes of determining the
marital deduction. See Estate of Reid v. Commissioner, 90 T.C.
304, 311 (1988). The trustees could decide how this estate tax
ultimately would be paid under the trust. Their ultimate option
does not control the determination of tax consequences as of the
date of death. See Ithaca Trust Co. v. United States, 279 U.S.
151, 155 (1929).
Although Texas courts determine the intent of a testator by
considering the will as a whole, Henderson v. Parker, 728 S.W.2d
768, 770 (Tex. 1987), the Court's interpretation of decedent's
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